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Dismissed Appeal

Appeal using the JC form Notice of Appeal nearly gets dismissed

Tim Kowal     September 12, 2023

The Judicial Council provides a form Notice of Appeal. But be careful if you use this form because it asks for extra information that could be used to limit the scope of your appeal or cause you to appeal from the wrong order.

That is what nearly happened in Lacour v. Marshalls of California (D1d4 Aug. 29, 2023) No. A163920 (nonpub. opn.). The trial court granted a motion for judgment on the pleadings via a minute order. The minute order was entered on September 10. The court also entered judgment the same day. The plaintiff filed a notice of appeal, indicating the date of the judgment or order as September 10.

Had this been a bare-bones notice of appeal, there would have been no issue. But the plaintiff was using the Judicial Council form. And that form asked the plaintiff to check a box describing the type of judgment or order. Instead of selecting “Judgment of dismissal,” the plaintiff checked the box for “Other” and typed: “Motion for judgment on the pleadings.”

A-ha! said the defendant. A “motion for judgment on the pleadings”—and orders granting them—are not appealable orders. So the appeal should be dismissed.

The defendant had a point. A partial appeal from a specific portion of an appealable judgment involves only those portions of the judgment that are identified in the notice of appeal. (Gonzales v. R. J. Novick Constr. Co. (1978) 20 Cal.3d 798, 805; American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 216.)

But that rule did not apply here because the notice of appeal identified the date of the judgment or order as the same date the judgment was entered. Although the notice of appeal reflected “some ambiguity,” notices of appeal must be construed liberally. (Cal. Rules of Court, rule 8.100(a)(2).) So the appeal survives.

Had the judgment not been entered on the same date as the order granting the motion for judgment on the pleadings, the plaintiff might not have been so lucky. Use extreme caution when filling out the notice of appeal. If you are in doubt about filling out the Judicial Council form, remember that it is an optional form. Consider using a bare bones form—you are not required to do more than identify the date of the order and the court that issued it.

The plaintiff went on to win the appeal on the ground that the Covid Emergency Rule 9 issued by the Judicial Council extended the PAGA statute of limitations, making his complaint timely.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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